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Tuesday, August 14, 2018

DOJ fights efforts to expand 'Brady Rule'

The Justice Department is taking on the Tennessee Supreme Court’s Board of Professional Responsibility over the Brady Rule--the responsibility of the prosecution to turn over evidence to the defense, reported The Marshall Project.

It’s the kind of little-noticed move the department makes
all the time but could have a lasting impact on the criminal justice system.

The department’s grievance is with an opinion published by
the Tennessee Supreme Court’s Board of Professional Responsibility earlier this
year announcing that prosecutors have a higher ethical obligation to divulge
certain kinds of evidence than what’s legally required of them under the
Constitution. That may seem like a nitpicky distinction. But in June, the
department’s three U.S. attorneys in Tennessee penned a scathing 10-page letter
demanding to appear before the board — a hearing that has now been scheduled
for September.

“The DOJ can’t stand it when states try to use ethics to
restrain their prosecutors’ conduct,” said Jennifer E. Laurin, a law professor
at the University of Texas and an expert on discovery, who noted that federal
prosecutors have been complaining about discovery rules since long before the
Trump administration.

The Tennessee case revolves around what any prosecutor in
the state, local or federal, should do with evidence that could prove a
defendant’s innocence. The U.S. Supreme Court has ruled in the famous Brady
v. Maryland and other decisions that district attorneys are duty-bound to
disclose this evidence only when it’s “material” to a case — in other words,
when it would probably change the outcome.

The Justice Department believes that guidepost is enough.

But over the past decade, lawyer ethics panels in at least a
dozen states, now including Tennessee, have said it’s a vague and impotent
standard. Prosecutors, these agencies say, are left to define “materiality”
however they see fit, judging for themselves whether a piece of evidence might
be useful to the defense or not.

Typically, prosecutors also don’t turn over evidence until
trial. Yet estimates are that more than 95 percent of criminal cases are
decided long before then, during plea bargaining.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.